Nguyen Thi Trung Chien[1], Tran Kim Yen[2], Nguyen Hien Nga[3]
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| Two Asian elephants named Patty and Maxine__Photo: Julie Larsen Maher |
Protecting wildlife on a global scale is gradually becoming a top concern and requires international cooperation, especially in the legal aspect. Mechanisms for protecting wildlife on a global scale are established based on national laws and international agreements of which the Convention on International Trade in Endangered Species of Wild Fauna and Flora - CITES is the most important one. CITES, with 25 articles and 35 appendices, provides the principles and regulations on international wildlife trade as well as over-exploitation of certain wildlife species. The Convention governs 5,600 species of wild fauna and flora which are divided into three groups of appendices with different levels or forms of protection and regulation depending on the level of necessity for protection.
Vietnam’s legal system on wildlife protection
Vietnam officially became the 121st member of CITES 30 years ago in 1994. Since then, the Vietnamese Government has built a relatively complete system at many levels, from policies to law and sub-laws documents on wildlife protection. The Convention has been basically internalized in legal documents on biodiversity, forestry, fisheries, trade, etc. and also laws on handling administrative and criminal violations of Vietnam. The most important documents include: 2017 Law on Forestry, 2008 Law on Biodiversity, 2017 Law on Fisheries, 2015 Penal Code (revised in 2017) (the Penal Code), 2012 Law on Handling of Administrative Violations (revised in 2020); Decree 06/2019/ND-CP on management of endangered, rare wild fauna and flora and implementation of CITES (replacing Government Decree 32/2006/ND-CP and Decree 82/2006/ND-CP and revised by Decree 84/2021/ND-CP); Decree 160/2013/ND-CP on criteria for determination of species and the regime of managing species on lists of endangered and rare species prioritized for protection (revised by Decree 64/2019/ND-CP); Decree 35/2019/ND-CP on penalties for administrative violations in the field of forestry (replacing Decree 157/2013/ND-CP and revised by Decree 07/2022/ND-CP); Decree 26/2019/ND-CP on guidelines for the implementation of the Law on Fisheries (replacing Decree No. 27/2005/ND-CP and Decree No. 57/2008/ND-CP); Decree 42/2019/ND-CP regulating the handling of administrative violations in the field of fisheries; and guiding texts issued by ministries and local administrations[4].
The above documents focus on the following main contents:
(i) Defining responsibilities of state management agencies in implementing CITES; designating and regulating the functions and tasks of CITES management authorities and CITES scientific authorities;
(ii) Promulgating the List of Endangered Species included in CITES Appendices for application of appropriate management mechanisms.
(iii) Adopting mechanisms for management of the breeding, trade, and transportation of endangered animals and plants and their specimens; inspection, management, and traceability of origin; and handling of exhibits in violation; and
(iv) Providing penalties for violations of regulations on management and protection of endangered species included in CITES appendices.
Achievements
One of Vietnam’s big steps forward in internalization of CITES is the promulgation of Law No. 12/2017/QH14 Revising the 2015 Penal Code under which two offenses related to wildlife protection and endangered, precious, and rare animal protection, considering wildlife crime serious crime. The maximum imprisonment sentence for crimes related to endangered, precious, and rare animals has also doubled, up to 15 years. It is also worth mentioning that it is the first time Vietnam’s Penal Code regulates criminal penalties on commercial legal entities when they commit these crimes. This manifests the Vietnamese State’s extremely strict attitude towards wildlife-related crime. Among Southeast Asian countries, Vietnam is considered the country with the highest penalty framework for wildlife violations under the CITES.
Vietnam’s legal system regulating the management of wild animals has been developed and revised, ensuring chain-based management and traceability and facilitating the inspection and supervision of the CITES implementation. As assessed by the CITES Secretariat, Vietnam is ranked A (good)[5] regarding legal system on wildlife management, including policies, laws and sub-law documents. The Vietnamese Government is also highly appreciated for its policy of applying digital technology to better manage and protect wildlife.
In addition, the system of state management agencies is increasingly improved in terms of functions and tasks so as to better implement CITES. Breeding and export of wild animals and their specimens have become more common, thus contributing to socio-economic development. According to CITES Dashboard 2021, the number of animals originated from lawful breeding farms has increased significantly. In many localities, wildlife exploitation and breeding activities have brought jobs and income to local families and communities and initially contributed to economic development and poverty reduction.
Shortcomings[6]
In addition to achievements, Vietnam also faces many problems in internalizing international conventions, causing fragmentation in the wildlife protection law.
The current legal system on wildlife protection is fairly complete but remains unsystematic. Regulations on wildlife protection are scattered in different documents and therefore overlap and are difficult to implement. For example, there are currently many lists of wild animals in different legal documents, such as Lists of wild animals stipulated in CITES Appendices; List of endangered, precious and rare species prioritized for protection provided in Decree 64/2019/ND-CP amending Article 7 of Decree 160 of 2013 on criteria for determining species on the List of endangered, precious and rare species prioritized for protection and their management mechanisms; and the List of endangered, precious and rare fauna and flora in Decree No. 84/2021/ND-CP revising Decree 06 of 2019 on management of endangered, precious, and rare animal and implementation of the CITES.
Regarding the quantification and valuation thresholds for determining the degree of criminal acts, the Penal Code stipulates specific quantitative levels, for example, three individuals, seven individuals, two kilograms, etc. These regulations may help procedure-conducting bodies identify elements of crimes and the appropriate punishment to impose on offenders. However, it is not easy to apply these regulations to wildlife-related cases involving different species (birds/mammals/reptiles) or parts of dead animals. In fact, CITES does not provide a specific threshold to determine whether a person illegally trading endangered, precious, and rare animals will be prosecuted for criminal liability. Article 234 of the Penal Code stipulates a specific amount of money to quantify the value of endangered wild animals or endangered, precious, and rare animals when determining crimes and deciding on penalties. Such fixed regulations can hinder criminal procedure-conducting bodies in practice because the valuation of wild animals varies in different locations, regions, and time of capture. It is not to mention to fact that some species are not allowed to be traded on the market and hence cannot be valuated.
Articles 234.2 and 244.2 of the Penal Code both consider “cross-border transport and trade” as aggravating circumstances. However, there are different understandings of “cross-border transport and trade”. Meanwhile, CITES only regulates “trade” which includes activities such as import, export, re-export, and introduction from the sea.
Besides, Vietnam’s law has not completely banned the captivity, processing and trading, etc. of wild animals for various reasons, mostly due to economic benefits.
Some recommendations
Improving the legal system
Firstly, in order to improve the legal system on wildlife protection, a new legal document, possibly a decree or decision, should be promulgated, covering all wildlife-related regulations which are now scattered in different legal documents. This move would help avoid the existence of too many lists of wild animals in the legal system at the time being.
Moreover, attention should be paid to the process of formulating legal documents so as to ensure practicability, avoiding the situation whereby a legal document must be revised shortly after promulgation like the case of Decree 06/2019/ND-CP, which was issued in 2019 and amended just two years later under Decree 84/2021/ND-CP, as such a quick change probably leads to many difficulties in law enforcement.
Secondly, Article 6 of Resolution No. 05/2018/NQ-HDTP of the Judicial Council of the Supreme People’s Court should be revised in the following direction: For criminal cases involving animals of more than species, including mammals, birds, reptiles, and other species of group IB or CITES Appendix I, if the number for animals of each class is lower than the threshold prescribed in Article 244 of the Penal Code, the numbers of animals of all class will be summed up and then the aggregate number will be converted into a class or species that is beneficial to violators. This would help ensure fairness and objectivity in handling of violators[7].
Thirdly, in addition to the valuation thresholds specified in in Article 234 of the Penal Code, it is necessary to prescribe quantitative thresholds for determination of penalties applicable to wildlife-related offenses so as to provide procedure-conducting bodies with more legal grounds for handling violations involving wild animals which are not traded on the market.
Fourthly, Decree 06/2019/ND-CP (revised under Decree 84/2021/ND-CP) should be added with a new article prohibiting the sale of all wild animals confiscated in cases of violation of the wildlife protection law for commercial purposes or in relation to commercial purposes. This is because Decree 06/2019/ND-CP has imposed a trade ban on wild animals of group IB and Appendix I to CITES as well as products thereof; for wild animals belonging to group IIB and Appendix II to CITES and products thereof, the Decree does not stipulate a trade ban but requires strict control and management of authorities.
Strengthening coordination in law enforcement
First of all, coordination among agencies competent to conduct procedure (customs offices, forest protection agencies, investigation bodies, people’s procuracies, people’s courts) should be intensified so as to better carry out investigation, prosecution, trial activities, etc.
As for wildlife cases involving foreign elements, especially cases involving CITES-listed species, it is necessary to improve coordination among CITES Management Authorities in countries to collect information in parallel with implementing the formal mutual legal assistance process. With support from these focal points, the Vietnam CITES Management Authority can assist procedure-conducting bodies in quickly collecting information through the national CITES focal point or the Secretariat. This is a very effective information channel that needs to be promoted.
To implement CITES more effectively, it is necessary to assign other scientific agencies with expertise and capacity to support management agencies and law enforcement agencies. If possible, these agencies should be located in different regions around the country for them to be able to render support faster while reducing travel costs and time. At present, CITES scientific agencies are concentrated mainly in the North[8].
Since joining CITES in 1994, Vietnam has witnessed many positive changes in wildlife protection, not only in research into biological characteristics of wild animals but also in the field of legal science. We hope that the loopholes in the legal mechanism for wildlife protection in Vietnam will be soon addressed so as to better implement CITES in the country.-
This article is written within the framework of cooperation with the Wildlife Conservation Society Vietnam.
[1] University of Law, Vietnam National University, Hanoi.
[2] University of Law, Vietnam National University, Hanoi.
[3] University of Law, Vietnam National University, Hanoi.
[4] Committee for Science, Technology and Environment.“Report on the results of monitoring the implementation of legal policies implementing the International Convention on Trade in Endangered Species of Wild Fauna and Flora”, No.: 1617/BC - UBKHCNMT14 dated January 8, 2020, reference date: February 28, 2023.
[5] Do Huong, Need to systematize laws on wildlife management, Government Electronic newspaper, May 26, 2020, referenced on February 26, 2023, https://baochinhphu.vn/can-he- information-hoa-phap-law-ve-quan-ly-dong-vat-hoang-da-102273181.htm
[6] Nguyen Phuong Anh (2021, January 5). Compatibility between Vietnam’s law and CITES regarding wildlife protection, published on Vietnam Law & Legal Forum magazine, retrieved on March 10, 2023, from https://vietnamlawmagazine.vn/compatibility-between-vietnams-law-and-cites-regarding-wildlife-protection-27527.html.
[7] Nguyen Duy Huu, “Practice of trying crimes related to protecting wild animals, endangered, precious and rare animals in Dak Lak”, https://tapchitoaan.vn/thuc-tien-xet-xu-cac- toi-pham-ve-cover-dong-vat-hoang-da-dong-vat-dong-cap-quy-hiem-tai-dak-lak, referenced on February 28, 2023.
[8] Report on reviewing legal regulations and providing comments on the draft Decree amending and supplementing a number of articles of Decree 06/2019/ND-CP.
